I.SUMMARY

1.On June 22, 2000, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received a complaint submitted by the
former Vice President of the Republic of Ecuador, Alberto Dahik Garzozi,
and his Costa Rican attorney Carlos Vargas, (hereinafter “the
petitioner”) against the Republic of Ecuador (hereinafter “the
State” or “Ecuador”), in which he alleged that the State of Ecuador
violated his human rights, to wit: the right to a fair trial (Article 8),
the principle of legality (Article 9), the right to equal protection of
the law (Article 24), and the right to judicial protection (Article 25),
enshrined in the American Convention on Human Rights, in breach of the
obligations set forth in Article 1(1) thereof. In turn, the State replied
that the petitioner has not exhausted the remedies provided by domestic
jurisdiction and asked the Commission to dismiss the complaint.

2. In July 1995, the National Congress accused the serving Vice
President of Ecuador, Alberto Dahik, of bribery and corruption in the
performance of his functions. On August 4, 1995, two members of Congress
filed a criminal complaint in connection with those charges and, on August
16, the president of the Supreme Court decided to begin proceedings. The
investigation conducted by the legislature ended on October 6, 1995, when
the bid to remove Mr. Dahik from office failed to receive the majority
vote required. In the judicial investigation, however, the Court issued a
preventive custody order on October 11, 1995. On that same day, Mr. Dahik
was allowed to enter Costa Rica and, on March 29, 1996, he was given
political asylum.

3.In this report, the Commission analyzes information submitted in
accordance with the American Convention and it concludes that the
petitioner has not exhausted the domestic judicial remedies available in
Ecuador for resolving his situation. Consequently, the Commission decides
to declare the petition inadmissible pursuant to Articles 46(1)(a) and
47(a) of the American Convention and Article 31(1) of its Rules of
Procedure,[1]
to transmit it to the parties, to make it public, and to order its
publication in its Annual Report.

II.PROCESSING BY THE COMMISSION

4.On October 21, 1999, the Commission received the complaint. On
March 27, 2000, the Commission began processing the petition and
transmitted the relevant communications to the State and the petitioner.
The State sent a detailed reply on July 17, 2000, which was forwarded to
the petitioner on July 26, 2000, for him to submit his comments within a
period of 30 days. On August 18, 2000, the petitioner asked the Commission
to make itself available to attempt to reach a friendly settlement in this
matter. The petitioner sent no comments on the State’s reply of July 17,
2000; and the State, in a communication dated November 1, 2000, rejected
the possibility of a friendly settlement.

III.POSITIONS OF THE PARTIES

A.Petitioner

5.The petitioner claims that in his capacity as vice president of
Ecuador during the administration of President Sixto Durán Ballén, he
suffered political persecution at the hands of his political adversaries
in the leadership of the Christian Social Party. According to the
petitioner, this persecution began in reprisal for public statements he
made in Guayaquil, Quito, and several main provincial cities, expressing
his government’s concern about growing corruption in Ecuador.
Consequently, according to the complaint, the National Congress began
impeachment proceedings against him so criminal charges could be brought
and he could be removed from office.[2]
The National Congress ruled in the petitioner’s favor and acquitted him
of the charges.

6.The petitioner claims that on August 15, 1995, in spite of his
acquittal by the National Congress, the president of the Supreme Court of
Justice, Dr. Miguel Macias Hurtado, a Christian Social Party sympathizer,
arbitrarily and illegally began legal proceedings against him and several
public officials for two crimes committed against the state.[3]
According to the petitioner, the president of the Supreme Court would only
have been entitled to begin criminal proceedings if the National Congress
had found him guilty; this, however, was not the case. On October 11 of
that year, Dr. Macias Hurtado ordered him placed in preventive custody
arrest and, subsequently, issued a declaration of commencement of the
investigatory phase—a measure he was not authorized to adopt, on account
of the petitioner’s immunity as vice president of the Republic of
Ecuador.[4]

7.The petitioner claims that Article 59(e) of the Ecuadorian
Constitution in force at that time only allowed criminal charges to be
brought against the vice president if so decided by Congress following
impeachment proceedings. Article 59 reads as follows:

The
National Congress shall meet, in plenary session but without needing
convocation, in Quito, on August 10 of each year, and shall hold
sessions for a period of no more than sixty days, with the sole purpose
of dealing with the following petitions:

(e)To undertake the impeachment, during their period of office or up
to one year thereafter, of the country’s president or vice president
(...) for offenses committed in the performance of their functions, and to
resolve their censure, if declared guilty, the result of which shall be
their removal and disqualification from holding public office for the same
period.

The
president and vice president may only stand trial for treason, bribery, or
any other offense that gravely affects the nation’s honor.

8.Because of the illegal warrant issued for his arrest by the
president of Supreme Court and the political persecution he was facing,
the petitioner reports that he fled Ecuador on the day his preventive
custody was ordered, October 11, 1995; arriving in Costa Rica, he
requested political asylum, which was granted by the Costa Rican
authorities on April 1, 1996. The petitioner has been living in that
country since 1995.

9.In addition, the petitioner claims that those criminal proceedings
were plagued by a string of irregularities. For example: (a) he was not
personally notified that criminal proceedings had been initiated against
him until he went to the courts to provide his statement for the
investigatory phase; (b) his attorneys were not allowed to submit evidence
of his innocence, including documents provided by the Office of the
General Comptroller of the State dealing with his spending in his capacity
as vice president; (c) his attorneys were not allowed to attend the expert
inspections carried out at the Ecuadorian Central Bank of the documents
dealing with how the funds allocated to the vice president’s office were
managed-this, in the petitioner’s opinion, was a flagrant breach of his
right of defense;[5]
and (d) he was not allowed direct participation in the criminal
proceedings brought against him, and the procedural timeframes established
by law were not respected.

10.The petitioner reports that as a result of this unfair criminal
action, he filed for a motion of annulment with the first chamber of the
Supreme Court of Justice; however, this motion was dismissed on trivial
grounds, thus curtailing his right of defense.

11.As regards the remedies offered by Ecuadorian law, the petitioner
holds that he has duly exhausted them all by pursuing the following: (a)
revocation of the preventive custody order, which the Supreme Court
dismissed on the grounds that there were elements indicating that the
petitioner could be responsible for the crimes of which he was accused;
(b) an amparo suit, which was
dismissed for trivial reasons, violating his human rights and
constitutional guarantees; and (c) revocation of the dismissal of the amparo
suit, which was also ruled inadmissible.

12.The petitioner concludes by claiming that the State of Ecuador has
violated the following human rights: the right to a fair trial (Article
8), the principle of legality (Article 9), the right to equal protection
of the law (Article 24), and the right to judicial protection (Article
25), all of which are enshrined in the American Convention. In
consideration whereof, he entreats the Commission to admit this petition
and allow him to return to Ecuador.

B.State

13.According to the State, the petitioner has not exhausted the
remedies offered by domestic jurisdiction for dealing with his claim;
consequently, the State asks the Commission to declare Alberto Dahik
Garzozi’s petition inadmissible.

14.As regards the petitioner’s arguments, the State “implores Mr.
Dahik to return to the country and to assert his rights before the
national courts, which (...) comply with all the fundamental
characteristics set forth in the Convention.” Moreover, the State
reports that the criminal proceedings filed against Alberto Dahik have
been suspended at the investigatory phase because the petitioner is
currently a fugitive from justice, in accordance with Article 254 of the
Code of Criminal Procedure;[6]
the petitioner cannot therefore claim that the domestic remedies have been
exhausted if the first criminal proceedings have not ended. The State adds
that the petitioner has available to him all the remedies provided by law
to challenge judicial decisions or to pursue annulment.

15.The State points out that the petitioner himself, in the appeal
lodged with the first criminal chamber of the Supreme Court, stated that
breaches of Article 59(e) of the Constitution are categorized as criminal
acts under Article 216 of Criminal Code, which provides as follows:
“judges and other employees who, without the authorization described in
the Constitution, request, issue, or sign a ruling or judgment against the
country’s president or his deputy, shall be punished with fines of
between fifty and two hundred sucres and prison terms of between one and
three years.” Consequently, the State adds, if Mr. Dahik held that the
actions of the president of the Supreme Court violated the principles of
legality and due process, he should have filed criminal proceedings
against the magistrates in order to exhaust that domestic remedy.

16.The State further notes that the petitioner has enjoyed free access
to domestic remedies and that he has never been denied access to the
competent tribunals in order to clarify his legal situation; his right to
due process has been respected in accordance with judicial guarantees.

17.With respect to the immunity from prosecution claimed by the
petitioner, in its reply of July 12, 2000, the State referred to this as
“a legal subterfuge to keep the crime from being punished,” since
although the National Congress issued the petitioner an acquittal, that
decision applies solely to the impeachment proceedings and has no effect
in the regular criminal courts. According to the State, “the National
Congress’s authorization for bringing charges against the nation’s
president and vice president is limited to the instances specifically
identified in the Constitution, to wit: treason, bribery, or any other
offense that gravely affects the nation’s honor. However, this
authorization is not necessary to prosecute those officials for other
offenses proscribed in criminal law.”

18.In addition to the above, the State notes that the provision of the
Constitution must not be taken as meaning that the president or vice
president are exempt from criminal responsibility for common crimes; this
precept serves to uphold the principle of equality before the law. In this
regard, the State concludes by stressing that Alberto Dahik’s case
involves two independent and separate trials: first, the impeachment
proceedings, the aim of which was his removal from office, and, second,
the criminal proceedings, the aim of which was to determine criminal
responsibility.

19.With respect to the procedural anomalies described by the
petitioner, the State maintains that the proceedings omitted no formality
or procedure that could have had an impact on any substantive decision in
the trial, and that the proceedings observed the principles of legality,
impartiality, and due process. Similarly, the petitioner has enjoyed the
right of access to justice, in that he has been able to submit evidence in
his defense and to pursue effective remedies.

20.The State says it agrees that the reasonable time guaranteed by
Article 7(5) of the Convention begins at the moment the person is accused,
taking the moment of accusation as meaning the official notification
issued by the competent authority: in the petitioner’s case, that was
August 16, 1995. However, the guarantee of a reasonable time does not
apply to Alberto Dahik Garzozi’s complaint, because he is not in Ecuador
and, in accordance with the law, the proceedings have been suspended.
Hence, any argument regarding failures to observe procedural timeframes is
invalid.

21.The petitioner is entitled, under Article 44 of the American
Convention, to lodge complaints with the IACHR. The petition names, as its
victim, an individual person with respect to whom Ecuador had assumed the
commitment of respecting and ensuring the rights enshrined in the American
Convention. With respect to the State, the Commission notes that Ecuador
has been a party to the American Convention since December 28, 1977, when
it deposited the corresponding instrument of ratification. The Commission
therefore has competence ratione
personae to examine the complaint.

22.The Commission has competence ratione
loci to deal with the petition, since it alleges violations of rights
protected by the American Convention occurring within the territory of a
state party thereto.

23.The Commission has competence ratione
temporis, since the obligation of respecting and ensuring the rights
protected by the American Convention was already in force for the State on
the date on which the incidents described in the petition allegedly
occurred.

24.Finally, the Commission has competence ratione
materiae, since the petition describes violations of human rights
protected by the American Convention.

B.Other Requirements for Admissibility

25.The Inter-American Court of Human Rights has maintained, in the Velásquez
Rodríguez case, that “the objection asserting the non-exhaustion of
domestic remedies, to be timely, must be made at an early stage of the
proceedings by the State entitled to make it, lest a waiver of the
requirement be presumed.”[7]
In its first reply to this petition, and in compliance with the Court’s
ruling, the State lodged an objection claiming that domestic remedies had
not been exhausted.

26.Another fundamental rule in the inter-American system is that a
State claiming the nonexhaustion of domestic remedies is required to
identify the unexhausted remedies available and indicate their
effectiveness. The Commission notes that the State has reported that the
trial of the petitioner for embezzlement of public funds was, on August
25, 1995, suspended at the investigatory stage by the president of the
Supreme Court—the judge eligible to try the accused, given his position
as vice president at the time the alleged crimes were committed—because
the accused was a fugitive from justice, in compliance with Articles 254
and 255 of the Code of Criminal Procedure; this shows that domestic
remedies have not been exhausted. The State has said: “this trial has
not ended, and the competent tribunals must proceed to resolve the matter
in accordance with law. This favorable or unfavorable resolution will be
the ideal way to resolve the petitioner’s situation (…)."

27.In reply to the petitioner’s claim that the State violated his
right to be tried within a reasonable period of time, the State replied
that Mr. Dahik could have filed a motion challenging the judge who
committed that violation, under the provisions of Article 871(10) of the
Code of Civil Procedure, applicable to criminal matters on a supplementary
basis. This provision stipulates the following:

Art.
871: A judge, of either a tribunal or court, may be challenged by any of
the parties and must recuse himself from the proceedings for any of the
following reasons:

10.
Failing to substantiate the proceedings within three times the time set
forth in law.

In
this connection, the State notes that: “The deadline for issuing a
ruling is 10 days following the end of the period for arguments increased
by one additional day for each 100 pages of the proceedings (see Arts. 409
and 410 of the Code of Criminal Procedure and Art. 292 of the Code of
Civil Procedure). In this case, given the legal suspension of proceedings,
the investigatory phase of this trial has not even begun; consequently, no
remedy could have been exhausted in these proceedings.”

28.Continuing with the possible domestic remedies available to the
petitioner, the State addresses the possibility of filing criminal action
against the president of the Supreme Court. The State points out that in
his appeal filed with the first criminal chamber of the Supreme Court of
Justice, the petitioner himself acknowledged that breaches of Article
59(e) of the Constitution are categorized as criminal acts by Article 216
of Criminal Code, which provides as follows:

Art
216. [Proceedings against senior authorities.] Judges and other employees
who, without the authorization described in the Constitution, request,
issue, or sign a ruling or judgment against the country’s president or
his deputy, shall be punished with fines of between fifty and two hundred
sucres and prison terms of between one and three years (...); the same
shall apply to an order intended to prosecute them or bring them to trial,
or when they have issued or signed the order or warrant for such arrest or
detention.

The
State says that if the petitioner believed that the actions of the
president of the Supreme Court violated the principles of legality and due
process, he should have filed criminal proceedings against the magistrates
in order to exhaust that domestic remedy.

29.Because of the subsidiary nature of human rights treaties, the rule
requiring the prior exhaustion of domestic remedies was created and is set
forth in Article 46(1)(a) of the American Convention. This exhaustion
allows the State to resolve the problem under its domestic law before
having to face international proceedings.

30.The State has shown that domestic remedies effective for resolving
the petitioner’s legal situation do exist. The Inter-American Court has
maintained that if a State “which alleges non-exhaustion proves the
existence of specific domestic remedies that should have been utilized,
the opposing party has the burden of showing that those remedies were
exhausted or that the case comes within the exceptions of Article
46(2).”[8]

31.On July 26 2000, the State’s reply detailing the possible
remedies offered by domestic jurisdiction was forwarded to the petitioner
for him to submit comments within a period of 30 days. The petitioner, as
of today’s date, has submitted no such comments. The Commission believes
that this failure to comment on the State’s reply is tantamount to tacit
acceptance of its position.

32.One requirement of juridical stability is that “an objection to
admissibility on the ground of non-exhaustion of local remedies is to be
raised only in limine litis, to
the extent that the circumstances of the case so permit. If that
objection, which benefits primarily the respondent State, is not raised by
this latter at the appropriate time, that is, in the proceedings on
admissibility before the Commission, there comes into operation a
presumption of waiver-albeit tacit-of that objection by the respondent
Government.”[9]
Similarly, the petitioner has the obligation of submitting his comments at
the appropriate point in the proceedings. If the petitioner fails to
explain why he did not exhaust the domestic remedies identified by the
State or why those remedies are not effective, there comes into operation
a presumption of waiver, albeit tacit, on the part of the petitioner. In
the Commission’s opinion, that is what has happened in this complaint.

33.For the reasons given above, the Inter-American Commission holds
that the petitioner has not exhausted the available domestic remedies and,
consequently, it concludes that his petition is inadmissible under
Articles 46(1)(a) and 47(a) of the American Convention and Article 31(1)
of the Commission’s Rules of Procedure.

V.CONCLUSIONS

34.Based on the foregoing considerations of fact and law,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

,

DECIDES:

1.To declare this petition inadmissible.

2.To give notice of this decision to the petitioner and to the State.

3.To publish this decision and to include it in its Annual Report to
the General Assembly of the OAS.

Done and signed at the headquarters of the Inter-American
Commission on Human Rights, in the city of Washington, D.C., on the tenth
day of October, 2001. (Signed):
Claudio Grossman, President; Juan Méndez, First Vice-President; Marta
Altolaguirre, Second Vice-President; Commissioners Hélio Bicudo, Robert
K. Goldman, and Peter Laurie.

*
Dr. Julio Prado Vallejo, an Ecuadorian national, did not participate
in the discussion of this case in compliance with Article 17 of the
Commission’s Rules of Procedure.

[1]
The new Rules of Procedure of the Inter-American Commission on Human
Rights came into force on May 1, 2001.

[2]
Article 104 of the Organic Law of the Legislative Branch in force at
that time provided as follows: “The National Congress’s resolution
shall determine the offense committed and shall impose the punishment
set by Article 59(f) of the Constitution of the Republic, remitting
the accused to the competent judge when appropriate.”

[4]
The petitioner maintains that the president of the Supreme Court could
have only begun criminal proceedings if the National Congress had not
ruled in his favor in the impeachment hearing.

[5]
The petitioner maintains that the inspections carried out at the
Central Bank of Ecuador were illegal because only the experts were
present, and not the judge.

[6]
Article 254(1) of the Code of Criminal Procedure in force at the time
reads as follows: “If, when the declaration of commencement of the
investigatory phase is issued, the accused is a fugitive from justice,
the judge shall, after issuing said declaration, order the suspension
of the investigatory phase until such time as the accused is
apprehended or presents himself voluntarily. While the accused remains
at large, the declaration of commencement of the investigatory phase
shall not be considered served; this declaration shall be notified to
him in person when he reports to the court or is apprehended.”